2019Na2026159 Damage

1. A;

2. B

3. C.

Plaintiffs (LLC) LLC et al.

Attorney Lee Jong-joon, Park Jae-young, and Yellow-gu

Korea

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Young-min

Seoul Central District Court Decision 2018Gahap512445 Decided May 23, 2019

November 7, 2019

December 17, 2019

1. Of the judgment of the court of first instance, the part against Plaintiff A and B equivalent to the following additional payment order shall be revoked.

The defendant shall pay to the plaintiff A and B 32,075,152 each amount of money and 15% per annum from October 1, 2017 to December 17, 2019, and 15% per annum from the next day to the day of full payment.

2. All remaining appeals by Plaintiffs A and B, Plaintiff C’s appeal, and Defendant’s incidental appeal are dismissed.

3. 90% of the total costs of the lawsuit between the plaintiffs A, B and the defendant shall be borne by the above plaintiffs, the remainder by the defendant, and the costs of the appeal by the plaintiffs C and the incidental appeal by the defendant shall be borne by each party.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff A and B the amount of KRW 1,693,805,090, KRW 300,000,000, and each of the above amounts to the plaintiff C, 5% per annum from October 1, 2017 to April 23, 2019, and 15% per annum from the next day to the date of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the plaintiffs falling under the amount ordered to be paid under the above shall be revoked. The defendant shall pay to the plaintiffs A and B 264,526,064 won, 25,000,000 won to the plaintiffs C, and 15% interest per annum from October 1, 2017 to the delivery date of a duplicate of the complaint of this case, and 5% interest per annum from the next day to the day of complete payment.

3. Purport of incidental appeal;

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is the same as that of the judgment of the court of first instance, except for amendments or additions in accordance with Paragraph (2).

2. Revised and added parts

○ The 6th written judgment of the court of first instance states "7 to 10, 12 to 15" of the 6th written judgment of the court of first instance as "7 to 16 evidence".

○ The first instance court’s text No. 14, 8 through 9, and 18-2, “the business rules on missing children, etc. to be taken out” respectively, shall be read as “the business rules on missing children, etc. to be taken out (the rules of each National Police Agency)”.

○ The following shall be added to the 16th sentence below the 15th sentence in the 15th sentence ruling:

Article 2 (Definitions)

The terms used in these Rules shall be defined as follows:

3. The term "missing child, etc." means a missing child, etc. found by his/her guardian;

○ The following parts are added on the 15th page of the first instance judgment and on the 1st page of the first instance judgment:

[10] Inspection and Disciplinary Action

A) As a result of the inspection of the P police station in the Seoul Metropolitan Police Agency, it was confirmed that the aforementioned 112 Overall Situation Office Operation and Report Processing Rules, and the guidelines for responding to missing children, etc. and runaways in accordance with the work process rules.

B) The police officer AA, the Z, and the mitigated AF were subject to a heavy disciplinary measure of three months of suspension from office, and were mitigated to one month of suspension from office for the police officer after the petition review. Upon dismissal of the petition in the review of the appeal, the Z filed an administrative suit seeking revocation of the above three-month disciplinary measure of suspension from office under the Seoul Administrative Court 2018Guhap7026, but the grounds for disciplinary action on September 5, 2019 were all recognized, and the judgment dismissing the petition was rendered on the ground that it cannot be deemed that a disciplinary measure was abused or abused even in light of the degree of misconduct and possibility of criticism, establishment of the public office discipline, and recovery of public confidence in police officers, etc., and the judgment of the appellate court was in progress (Seoul High Court 2019Nu60372).

C) The N District Senior Professor was subject to the 3-month of salary reduction, G, and V’s 2-month of salary reduction, respectively, and was reduced to 1-month of salary reduction for the Senior Professor through a petition review.

D) Other night-time general situation management officer’s correction Y was subject to reprimand disposition, female juvenile director AH was subject to reduction of two months, and for AI chief police officer as a general manager, reprimanded personnel measures were taken on the ground of insufficient management and supervision.

○ The following parts shall be added at the end of the 17th judgment of the first instance.

Under the Act on the Protection and Support of Missing Children, Etc., the duty of the State to conduct search and investigation for prompt recovery and return of missing children, etc. is prescribed as the duty of the State. According to the relevant provisions of the aforementioned provisions, which are the established rules of the National Police Agency based on these provisions, where a report on the occurrence of missing children, etc. is received to 112, if there is risk factors to life and body, such as a crime or accident-related case in comprehensive consideration of the details of the report, etc., it shall be classified as a report and issued as the top priority order. As such, it is necessary for the female juvenile investigation team and local police officer of the police station under the jurisdiction of the police station under the 1'No. 1'No. 'No. 1' to dispatch the same priority to other duties and promptly take initial action, such as search of the surroundings of the last witness place. However, it is not clear that the government did not start the legal duty of early search of the deceased, including the time during which the deceased remains.

○ The 18th to 5th parallels in the first instance judgment are as follows.

In full view of the purport and content of the relevant individual provision of the above Rule, the specific act committed by the police officers belonging to the Defendant as seen earlier, the first 112 reporting time, the possibility of detection of the deceased’s whereabouts, and expected time of the deceased’s death when taking measures, such as search and seizure pursuant to the provision, etc., the proximate causal relation between the police officers’ occupational violation and the death of the deceased should be acknowledged.

○ The 8th to 22th page of the first instance judgment are as follows.

c. Limitation on Liability

1) In the case of joint tort, as a matter of principle, all the joint tortfeasors shall be assessed as a whole to determine the amount of compensation in relation to the victim. Even if the degree of participation by one tortfeasor is insignificant, it can only be asserted in the internal indemnity relationship against other perpetrators, and cannot be asserted in relation to the victim (see, e.g., Supreme Court Decision 2000Da13900, Sept. 29, 200). However, in light of the above legal principle of guiding the fair and reasonable apportionment of damages, if the limitation of liability is unreasonable, it can be recognized as limitation of liability. In a case where the State is liable for damages to the victim due to the negligence committed by the police officer under its jurisdiction in the course of performing its duties, the scope of compensation shall be limited in light of the contents and nature of the police officer’s duty of care required in the relevant performance of duties, the background and attitude of the police officer’s violation of the duty of care, the objective circumstances and degree of involvement in the occurrence and expansion of damages by the victim, etc.

2) In light of the above legal principles, even though the public health team and the police officers belonging to the defendant violated the legal obligation in the course of performing their duties as seen above and the causal relationship between such unlawful act and the death of the deceased is recognized and thus the liability for damages is established as joint tortfeasor as joint tortfeasor, the defendant's liability not to prevent the crime or prevent the expansion of damage is different from that of the intentional act by actively participating in or facilitating the crime committed at a cruel criminal act in light of the ideology of the damage sharing compensation system, such as fair apportionment of damages. The defendant's liability is determined by limiting the ratio of the defendant's liability to 40% of the total damage, by comprehensively taking into account all the circumstances indicated in the records, such as the specific circumstance of the police officer's breach of the duty of care, the specific circumstance of the police officer's violation, the form of each relevant act, the possibility of predicting and preventing the deceased'

○ The 23th parallels to 3th parallels in the first instance judgment are as follows.

b. The passive damages of the deceased, taking into account their limitation of liability.

176,601,216 won (=41,503,040 won x 0.4)

○ The 14th to 15th parallels in the first instance judgment are as follows.

“If the deceased deducts KRW 28,207,340 from the bereaved family relief fund of KRW 176,601,216, the deceased’s passive amount of damages, the deceased’s passive amount of damages would remain 148,393,876.”

○ The 16th day to 24th day of the first instance judgment are as follows.

(d) Consolation money;

D, which committed a crime committed by police officers against the deceased in the course of the performance of their duties, did not make any effort to recover from damage even though a conviction of life was finalized, and thus, as the plaintiffs did not make any effort to recover damage, the compensation from the defendant, who is the joint tortfeasor, is the only method to actually receive damage compensation from the defendant. In full view of the deceased's age and environment, the status and status with the plaintiffs, and all other circumstances shown in the first instance court and this court in the proceedings, the consolation money of the deceased shall be KRW 50 million, and the consolation money of the plaintiffs A and B shall be KRW 25,00,000,000, respectively, and the consolation money of the plaintiffs C shall be KRW 5,00,000,000.

(e) Calculation of shares in inheritance;

1) Amount subject to inheritance: Total of 198,393,876 won (=148,393,876 won for the deceased’s property damage + 50,000,000 won for consolation money of the deceased)

2) Inheritor: Plaintiff A and B (Each 1/2 equity)

3) Calculation: Plaintiff A, B, 99,196,938 won (=198,393,876 won x 0.5)

F. Damages against the plaintiffs

1) Plaintiff A and B: Each 124,196,938 won (=124,196,938 won in inheritance + one’s consolation money + 25,000,000 won in inheritance)

2) Plaintiff C: 5,000,000 won

G. Sub-committee

Therefore, with respect to KRW 92,121,786 for Plaintiff A and B, and the part cited by the first instance judgment for Plaintiff C, each of which is KRW 124,196,938, and KRW 5,000 for Plaintiff C, the part cited by the first instance judgment, respectively, and KRW 5,000,000 for Plaintiff C, the date of death of the Deceased, and KRW 5,000 for the period from October 1, 2017 to May 23, 2019, where it is deemed reasonable for the Defendant to raise a dispute as to whether or not the obligation is performed or not; KRW 5% per annum from the following day to the date of complete payment; KRW 15% per annum from the date of the first instance judgment to the date of complete payment; KRW 32,075,124,196, 198, and KRW 150 per annum from the date of the second instance judgment to the date of complete payment; KRW 15,2071,2700.

3. Conclusion

The plaintiffs' claims of this case shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed for lack of reasonable grounds. Since the part of the judgment of the court of first instance against the plaintiffs Gap and Eul which partly differed from this conclusion is unfair, the above plaintiffs' appeals shall be partially accepted and revoked, and the court of first instance shall order the defendant to pay the above amounts additionally recognized by this court. Since the remainder of the judgment of the judgment of the court of first instance is justifiable, the remaining appeals of plaintiffs Gap and Eul, and the incidental appeal of the plaintiffs Eul and Eul shall be dismissed for lack of justifiable grounds, and all of

Judges Shin Young-hee

Judge Full-time Suspension

Enforcement Decree of the Judge’s Interest